Requiring decision-makers to consult
This is a single section from Chapter 19. Read the full chapter here.
When should legislation include requirements to consult?
Legislation should include a requirement to consult when that is necessary to clearly ensure good decision-making practice.
There is a wide spectrum of decisions made under legislation where consultation may be expected but is not required by the legislation. In general, decisions made by Cabinet can be expected to be made in accordance with the Cabinet Manual requirements for consultation. However, in some circumstances, it may be useful to include a legislative requirement to consult.
Officials should identify the stakeholders affected by the particular decision and consider the significance of the decision, the nature of (and controls otherwise applying to) the decision-maker, and the need for transparency and accountability in the particular context. A legislative requirement to consult may be necessary to:
- provide additional assurance and certainty to people affected by a decision that their views can be presented. This may be important in securing support for the legislation or in addressing concerns about the delegation of decision-making powers. If there are conflicting perspectives, it may be important to ensure that they are given a clear opportunity to be included;
- set clear processes around what is required for consultation (to give certainty to decision makers and clarity to stakeholders);
- ensure consistency of consultation practice for similar decisions (particularly where there are multiple decision-makers and consistency of expectations and practice is important); or
- address concerns that consultation obligations from other sources (such as the common law or Cabinet Manual) are inaccessible to many people or do not apply.
However, there are some risks with solidifying the requirement to consult in legislation rather than leaving it up to good administrative practice. Including procedural requirements in legislation always risks reducing flexibility to tailor requirements to circumstances and potentially creates more complex legislation.
In assessing the risks, the following factors may limit the kind of consultation required by the legislation or may justify not including an obligation to consult:
- if, given the minor nature of the decision, consultation would add too much cost to the process;
- if, where the decision is required to be made urgently, consultation would create inappropriate delay; or
- if meaningful consultation could expose information that should remain confidential.
Officials should note that, in some cases, the common law provides a duty to consult (but usually only if the effect of a decision on an individual is significantly different to its effect on the general public). The common law duty to consult may occur where there is a legitimate expectation of consultation arising from a promise, past practice, or a combination of both on the general ground of fairness or because a duty can be implied into the statute. However, in general, this is sufficiently rare or uncertain that it would not weigh against including a legislative obligation to consult if one would otherwise be advisable for the reasons given above.
 See Nicholls & Anor v Health and Disability Commissioner  NZAR 351 (HC) at 369-370; Talleys Fisheries Ltd v Cullen & Ors (HC Wellington, CP 287/00, 31 January 2002 (Ronald Young J).
 This situation should be distinguished from the situation where natural justice applies. In that case, statute law commonly relies with confidence on this duty applying to decisions affecting individual rights at common law.